Non-governmental Organisations Major Group - 2nd World Water Forum

Background paper for the workshop 'WATER AS A BASIC NEED'

Water Law, Water Rights and Water Supply & Sanitation for the poor

Peter Howsam,

Cranfield University, Silsoe, UK - tel. + 44 (0) 1525 86 3288


If one reads the many national and international policy statements issued over the years about poverty alleviation and the priority of providing everyone with adequate water and sanitation, then one might be lead to believe that the situation should by now be well in hand.

However when one looks at the current situation, where over 50 % of the populations of the poorer nations still lack adequate water supplies and sanitation facilities, one has to conclude that such declarations were simply propaganda; and that in reality many people and states have other priorities, such as economic development and more recently conservation of the environment. Furthermore as an excuse for lack of action people tend to hide behind the complexity and criticality of global water resources.

Look for instance at the high priority and vast amount of resources given to tackling environmental issues such as global warming and biological diversity. Whilst few would argue that these are not important issues, surely they, which have not directly killed many people, cannot begin to be comparable to an issue (i.e. lack of an adequate water supply and sanitation) which contributes to the sickness and death of millions of people every year, due to avoidable water related diseases.

The people who can make a difference and who prioritise economic and environmental issues are not the poor but people who live relatively comfortable lives. It is understandable that the poor feel demoralised by their actual and perceived status but it must be so much worse to realise that many of their fellow citizens are more concerned about the well being of a dragon-fly than that of a fellow human being.

In many relatively prosperous countries the philosophy behind legal measures for the protection of the rights of the environment (i.e. legal provisions to control pollution) would appear to be stricter than that applied for the protection of human life.

In the UK for instance pollution of the water environment is considered by society to be of such a serious nature that it is deemed appropriate (through legislation) to make it a criminal offence if someone causes polluting harm not only by a positive act (with or without intent) but also by simply failing to act to prevent it (i.e. "knowingly permitting" - s.85 Water Resources Act 1991) Yet society whilst considering a direct positive act to harm a person as a serious crime and totally unacceptable in a civilised society, does not seem to mind if someone dies because of someone failing to act . One could say that society is "knowingly permitting" people to suffer harm or die, due to their lack of access to an adequate water supply and sanitation; One could be forgiven for concluding that a large part of society seems to have got its priorities completed mixed up.

A point that came out strongly in the Africa study was the lack of national political will. National political will can be influenced by internal and external pressures. In the latter case conditions can be placed on loans; donors can decide on debt relief measures etc; However there is a degree of hypocrisy over this, in that when it comes to tackling issues such as water supply and sanitation for the poor, many conveniently regard this as a national and not an international problem; but when economics and power come into the frame then suddenly many suddenly talk in terms of global priorities to justify intervention and sometimes exploitation. If we are honest we simply have to admit that there has not been the political (and social will), to tackle human circumstances which should be socially and morally unacceptable.

This paper deliberately tries to raise the profile of those without adequate water and sanitation and to the prick the consciences and question the priorities of the better off It is suggested that as many countries in the last decade have addressed or are in the process of addressing national water policy and the associated legislation, an opportunity now presents itself to redress current misguided priorities.

1999 Africa Study

A short study was recently conducted by lawyers/engineers in 5 African countries.

Ghana (Kwadwo Mensah)

Mozambique (Latifa Ibraimo)

Tanzania (Ismail Mwaka

Uganda (Judy Obitre-Gama)

Zambia (Zeb Phiri)

- assisted from the UK by Pat Wouters and the author.

The aim of the 6 month scoping study , funded by DFID (UK), was to identify (and promote awareness and understanding of) the constraints and enabling conditions provided by existing water laws (statutory and customary) with regard to the poor having access, or being entitled, to a safe and reliable supply of water and sanitation facilities

In simple terms, the key constraint, especially under statutory legal systems, is the lack of an accessible and effective legal means of redress for the poor, who do not have the adequate water and sanitation. The inadequacy may lie in the legislation itself but more often than not it lies in the implementation and application.

A summary of the constraints identified reveals an emphasis on wider factors outside the narrow field of legal provisions: The prime ones are:

inadequate political will

inadequate capacity and funding

inadequate information, awareness & understanding

Any solutions to remove or reduce legal constraints and to facilitate or enhance enabling conditions, will need to take these issues in to account.

On the positive side the study identified clear signs that enabling conditions are emerging, and are being sought and supported.

raised awareness
moves to democratisation
community co-operation & cost sharing

General points and conclusions

Effective (socially & politically acceptable) legally based mechanisms are needed. Two approaches are possible and both together would have a greater impact; i.e. on the one hand to provide an individual with accessible means of legal redress if his/her entitlement to water and sanitation is not met; and on the other hand to provide a means to enforce the obligations of water and sanitation providers.

Control should be in the hands of those closest to the issue, i.e. people and local communities with the state (and international agencies) providing only a co-ordinating, educating and information disseminating role.

Customary water laws which tend to support only water rights related to land ownership and occupancy are not sustainable in their current format and cannot on their own provide the solution. But customary laws or traditional rules relating to land and water rights still, in some places, have a significant influence on day-to-day practice, especially in rural communities. Traditional customary rules are not widely documented and therefore there is considerable lack of awareness and understanding. Better knowledge and understanding are required in order to evaluate the part customary rules might play in future legal systems, especially in the current climate of encouraging local community participation in water supply and water resource management.

Statutory laws have in the past provided for state control of water, but in retrospect, can be seen to have neither served the best interests of the water environment nor been able to provide for basic individual water needs. The trend to of state control of water has cut out local decision making and allowed the introduction of externally generated priorities, often within the influence of influential and wealthy sectors of society.

However that said, national statutory legislation will provide the principle legal framework for tackling the issue of the poor who lack of adequate water supply and sanitation, while some aspects of customary law could make a useful contribution and the impact of international law relating to shared water resources cannot be ignored. The absence or effectiveness of transboundary water treaties can have a significant impact on the feasibility of any national water resource allocation and management strategy and supporting legislation.

International law addresses the subject of Human Rights. On initial reflection one would assume that rights to basic water and sanitation would be an obvious specified priority in the 1948 UN Universal Declaration of Human Rights, but this is not the case. Only in the later 1989 UN Convention on the Rights of the Child, is water and sanitation given specific mention (Art.24).

Water supply and sanitation is such a basic fundamental need it must be a fundamental right which should be of such a high priority that it becomes the global priority overriding any other level of national interest .

The water resources required to meet all basic needs is not a lot and is available in the vast majority of situations, as are, on a global scale, the financial resources - do not believe otherwise; Those that say there is not enough money should explain that what they really mean is that there is not enough money left after most of the available international or national financial resources have been spent on other priorities - change the priorities and suddenly it's affordable.

What message for instance, should UK politicians take from the fact that they on behalf of their citizens decide to spend £5M to help Mozambique deal with its current flooding disaster, whilst the citizens themselves volunteer nearly 3 times that amount.


Lobby politicians directly, and indirectly via their public, to have water and sanitation specifically and formally declared as a fundamental human right within the Universal Declaration of Human Rights - which in turn should encourage and prioritise constitutional recognition of the right of all citizens to basic water supply and sanitation needs.

The legal measures to support entitlement and enforce obligations can only be developed by the people of the countries and communities themselves . They should not be imposed by outside agencies, but those outside agencies can help with resources to help with national attempts in capacity building.

Lawyers from the poorer countries should be enabled to work together to find answers to questions such as:

1. What rights do people have to have access to a clean and reliable water supply and to sanitation ? and specifically are the poor included or excluded ?

2. What "rules" govern those rights and what mechanisms exist to apply and enforce them ?

3. Do public or private sector bodies exist which are under legal obligations to provide water and sanitation ?

4. What are those obligations ? and are they monitored and enforced ?

5. What legal redress is available to an individual or community for a breach of those obligations ? and specifically is that legal redress accessible to the poor ?

6. Where the poor are particularly neglected is there the political will and the appropriate mechanisms to introduce a better system ?

And then to develop, introduce and apply effective, accessible and enforceable legal systems.

For the International community to work with national governments to help with provision and funding of a legal aid system which provides the poor with the access to the law to protect their rights and entitlements with respect to water supply and sanitation.

For the international community to continue to support the work of national and community agencies and NGOs in their efforts with the funding and provision of water supply and sanitation infrastructure